TOWARDS THE PROTECTION OF HUMAN RIGHTS: DO THE
NEW ZIMBABWEAN CONSTITUTIONAL PROVISIONS ON
JUDICIAL INDEPENDENCE SUFFICE?
http://dx.doi.org/10.4314/pelj.v17i1.09
2014 VOLUME 17 No 1
368 / 612
TOWARDS THE PROTECTION OF HUMAN RIGHTS: DO THE NEW ZIMBABWEAN CONSTITUTIONAL PROVISIONS ON JUDICIAL
INDEPENDENCE SUFFICE?
L Chiduza*
1 Introduction
In a country founded on constitutional democracy, the independence of the courts is pivotal to the protection of human rights.1 Constant interferences with judicial independence2 in Zimbabwe have consequently contributed to the infringement of
human rights, as the citizenry cannot rely on the courts for their protection.3
Cognisant of the significant role of the judiciary in the protection of human rights in most democracies, Zimbabwe's new Constitution (hereafter Constitution of Zimbabwe) should ideally be aimed at bolstering the independence of the judiciary through a number of judicial reforms.4 The purpose of this paper is to analyse the
judicial reforms introduced by the new Constitution with a view to establishing if they will suffice to improve judicial independence and in turn to protect human rights. To this end the discussion below will commence with an elucidation of the concept of judicial independence". The typical features of an independent judiciary will be discussed next. This discussion will then be followed by an analysis of the
* Lovemore Chiduza. BA English (Solusi University); LLB, LLM (University of Fort Hare) and and is currently undertaking a Research Fellowship with the Department of Research Development, University of the Western Cape. Email: lchiduza@yahoo.com.
1 Dumbutshena 1989 SAJHR 313.
2 "Judicial independence", in brief, entails that the judiciary be separated from the other branches of government so as to ensure that the courts are not subject to improper influences from the other branches of government. The concept will be discussed in greater detail later in the paper. 3 One of the examples of the Zimbabwean government's interference with the judiciary was when
Gubbay CJ (as he then was) was forced to retire prematurely after he delivered a judgment in the case of Commercial Farmers Union v Minister of Lands, Agriculture and Resettlement 2000 2 ZLR 469 (SC). In casu he had granted an interdict barring further land acquisitions by the government, as such acquisition were unconstitutional and had been carried out in a violent manner.
4 The constitutional reforms have culminated in the adoption of a new Constitution. The
Constitution of Zimbabwe (2013) replaced the Lancaster House Constitution, 1980. The need for the adoption of a new Constitution was highlighted in the Preamble of the Global Political Agreement (GPA) of September 2008.
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guarantees relating to the independence of the judiciary in the Constitution of Zimbabwe.
2 Judicial Independence
Separation of powers
The notion of judicial independence" is founded on Montesquieu's doctrine of the separation of powers. This doctrine seeks to avoid the concentration of powers in a single organ of state as this is viewed to be detrimental to the freedoms of citizens.5 Montesquieu asserts that the judiciary should be separated from the legislature and the executive to guarantee freedom. Thus, the doctrine demands that the law-making task be vested in the legislature, the application and interpretation of the law in the judiciary, and the overall administration of government in the executive.6 The
judiciary is the custodian of the law and ensures that government activities are executed in line with the rule of law. Importantly, the doctrine of the separation of powers contributes to the guarantee of judicial impartiality in the adjudication of alleged human rights violations. Conversely, the absence of the separation of powers compromises judicial impartiality and therefore precludes assurances of the application of effective legal remedies to victims of human rights violations.
Features of an independent judiciary
A number of features determine the extent of the independence of the judiciary. According to Madhuku these include: the method of the appointment of judges; the method of the removal of judges from office; whether or not the judiciary has exclusive jurisdiction over judicial matters; and the question of the salaries payable to judges.7 Brazier too contends that:
5 Wade and Bradley Constitutional and Administrative Law 51. 6 McQuoid-Mason, O'Brien and Green Human Rights for All 33. 7 Madhuku 2002 J Afr L 232.
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In general the public must feel confident in the integrity and impartiality of the judiciary: judges must therefore be secure from undue influence and be autonomous in their own field. That possibility implies that neither the government nor Parliament should have any role in the appointment or removal of judges. More precisely, judicial independence may be said to require: (a) that appointments to the judicial office, renewal of part-time appointments, and promotions should not depend on uncontrolled ministerial patronage; (b) that judges should be free from improper attempts by Ministers, Members of Parliament, or peers to influence the result of cases still under adjudication; (c) that judicial salaries should not be reduced; and (d) that judges should not be removed from office unfairly or without reason.8
Rautenbach and Malherbe furthermore note that the independence of the courts is an incidence of the separation of powers.9 Hence the constitutions10 of a number of countries contain provisions that protect the independence of the courts. Such provisions typically include amongst others, specific guarantees regarding the terms of office of judges, their salaries and pensions, disciplinary actions and appointments and dismissals. The guarantees relating to the independence of the judiciary in the new Constitution of Zimbabwe will be discussed below:
2.1 A clear statement providing for an independent judiciary
Madhuku contends that a clear statement on judicial independence is needed in a constitution.11 Such a statement is important for two reasons. First, it allows that redress can be sought in the courts if a law undermines the independence of the judiciary. Second, such a statement enables the public to criticise the executive's interference with the work of the judiciary.12
8 Brazier Constitutional Reform 172.
9 Rautenbach and Malherbe Constitutional Law 165. See also De Lange v Smuts 1998 3 SA 785 (CC) paras 60, 70-72; South Africa Association of Personal Injury Lawyers v Heath 2001 1 SA 883 (CC) paras 25-26.
10 See s 165(2) of the Constitution of the Republic of South Africa, 1996, which states that "the courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear or favour". See also s 128(1) of the Constitution of the Republic of Uganda, 1995, which states that "(1) in the exercise of judicial power, the courts shall be independent and shall not be subject to the control or direction of any person or authority". 11 Madhuku 2002 J Afr L 233.
12 Madhuku 2002 J Afr L 233. It should also be noted that the author is aware that the inclusion of these statements in the Constitution does not necessarily guarantee their application in practice. An example that can be used in this instance is that of s 104(4) of the Constitution of Zimbabwe, which stipulates that in appointing Ministers and Deputy Ministers, the President must be guided
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Previously section 79B of the Lancaster House Constitution provided a clear statement for the protection of the independence of the judiciary.13 Currently section
164(1) of the Constitution of Zimbabwe expressly guarantees the independence of the judiciary and places obligations on government to respect the independence of the judiciary and its judgments.14 This provision places a positive duty on government to respect the independence of the judiciary and also serves as a constant reminder to all of the importance of abiding by the decisions of the courts.
This section provides the general constitutional guarantee with regards to the protection of the independence of the judiciary. It is drafted in line with international law principles which demand that the independence of the judiciary be guaranteed by States and enshrined in the Constitutions or laws of the country.15 To further
strengthen the independence of the judiciary, the Constitution of Zimbabwe obliges the State to enact ordinary legislation that will further supplement this constitutional provision.16 As a result, legislation will have to be informed and guided by the provisions in the new Constitution.17
The Constitution of Zimbabwe stipulates, in line with international norms, that no person or organ of state may interfere with the functioning of the court.18 In
addition it provides that judges should decide cases impartially based on the facts of the case and their understanding of the law and without any direct or indirect
by considerations of regional and gender balance. Despite the existence of such a provision for gender equality in official appointments, the President in his 2013 cabinet selection appointed only four female Ministers out of twenty-nine , two provincial female Ministers out of ten, and five deputy Ministers out of twenty-five. See Staff Reporter The Zimbabwean.
13 See s 79B of the Lancaster House Constitution. 14 S 164(3) of the Constitution of Zimbabwe
15 See Principle 1 of the United Nations Basic Principles on Judicial Independence (1985). 16 S 164(2)(b) of the Constitution of Zimbabwe.
17 No specific provision is provided for in the Constitution for complaints to be lodged to any forum if this provision is not complied with. However, we have seen in jurisdictions like South Africa that there are specific interest groups that would perhaps attempt to litigate where there is non-compliance with constitutional guarantees.
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influence on their decisions.19 Although the Constitution states that a member of the
judiciary may be vested with other functions apart from adjudicating powers, it does recognise that such functions should not interfere with the independence of the judiciary.20 To give effect to the provision, however, the granting of non-judicial
functions to judicial officers should be closely guarded by the newly established Constitutional Court. This is to ensure that there is no excessive interference by other branches of government with judicial duties21 and to prevent the inappropriate
assignment of such powers to judicial officers.22
2.2 Judicial authority
Section 79 of the Lancaster House Constitution vested the judicial authority in courts.23 Section 162 of the Constitution of Zimbabwe states that:
The judicial authority ... is vested in the courts, which comprise- (a) the Constitutional Court24; (b) the Supreme Court25; (c) the High Court26; (d) the
19 This provision closely resembles Principle 2 of the United Nations Basic Principles, which also provides that the judiciary should decide matters before them impartially, on the basis of facts and in accordance with the law.
20 S 164(4) of the Constitution of Zimbabwe.
21 See Van Rooyen v The State 2002 5 SA 246 (CC) where the Constitutional Court declared invalid provisions of the Magistrates Act 90 of 1993, Magistrates' Courts Act 32 of 1944 and regulations made under the Magistrates Court Act dealing with the powers of the Minister inter alia to determine the salary of a suspended magistrate, vesting in Parliament the power to impeach a magistrate without investigation by the Magistrates' Commission, and allowing the appointment of a non-judicial officer to hear the complaints against a magistrate.
22 See South African Association of Personal Injury Lawyers v Heath 2001 1 SA 883 (CC) paras 29-35, where Chaskalson P accepted that the exercise of some non-judicial functions may be in order and expressly left open the possibility for judges to serve on commissions of enquiry, observing: "performance of such functions ordinarily calls for the qualities and skills required for the performance of judicial functions-independence, the weighing up of information, the forming of an opinion based on information, and the giving of a decision on the basis of consideration of relevant information". In Van Rooyen v The State 2002 5 SA 246 (CC) paras 231-233 it is stated that magistrates should not be required to perform administrative duties unrelated to their functions as judicial officers because to do so may make them answerable to the executive. However, Chaskalson CJ also noted that "there may be reasons why existing legislation that makes provision for administrative functions and duties to be performed by magistrates is necessary, and is not at present inconsistent with the evolving process of securing institutional independence at all levels of the court system".
23 The courts consisted of the Supreme Court, the High Court and such other courts subordinate to the Supreme Court and the High Court established by or under an Act of Parliament.
24 S 166 of the Constitution of Zimbabwe. 25 S 168 of the Constitution of Zimbabwe. 26 S 170 of the Constitution of Zimbabwe.
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Labour Court27; (e) the Administrative Court28; (f) Magistrates Courts29; (g) the
Customary law courts30; and (h) other courts established by or under an Act of
Parliament.
A distinct change brought about by the Constitution is the introduction of a Constitutional Court.31 The Constitutional Court will deal only with cases of alleged
violations of constitutional rights relating to the Constitution.32 Taking into
consideration that the human rights situation in the country has been in turmoil over the past decade, the establishment of the Constitutional Court as the highest court in all constitutional matters may33 lead to an improvement in the judicial protection of human rights in the country.
The jurisdiction of the Constitutional Court is dealt with under section 167 of the Constitution. The Constitutional Court now has the exclusive jurisdiction to advise on the constitutionality of any proposed legislation34 and also makes the final decision as to whether an Act of Parliament or conduct of the President or Parliament is constitutional or not, and must confirm any order of invalidity made by another court before that order has any force.35 While there was previously power of judicial
review, the Constitutional Court is expressly given the powers to conduct checks and balances. This is a positive development as the courts are now expressly given the powers to conduct checks and balances on Parliament and the executive branches of
27 S 172 of the Constitution of Zimbabwe. 28 S 173 of the Constitution of Zimbabwe. 29 S 174 of the Constitution of Zimbabwe.
30 S 174(b) of the Constitution of Zimbabwe states that the Customary Law Court's jurisdiction consists primarily in the application of customary law.
31 See Motala and Ramaphosa Constitutional Law 55, which states that the establishment of constitutional courts can be traced back to after the Second World War, when many European countries introduced court structures that deviated from the Anglo-American model, which entrusted a court with specific jurisdiction. Hence the establishment of a special constitutional court to adjudicate on constitutional disputes and to prevent tyranny. This perhaps could be the rationale for the introduction of such a court in Zimbabwe.
32 See s 167 of the Constitution of Zimbabwe.
33 It should be noted that in this instance emphasis is on the existence of the institution rather than personalities. Admittedly those who occupy seats on the bench should be willing to uphold the law. Historically there has been a lack of independence and as such the constant retention of the same judicial officers from the Supreme Court might defeat the purpose and intentions of the Constitutional Court.
34 S 167(2)(a) of the Constitution of Zimbabwe. 35 S 167(3) of the Constitution of Zimbabwe.
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government. This marks a major departure from the Lancaster House Constitution, which did not include such a provision. If these powers are exercised by an independent and impartial judiciary, it will bode well for the protection of human rights in the country. It will also prohibit the abuse of power by other branches of government.
The powers to test the constitutionality of legislation are aimed at ensuring that no legislation that is in conflict with the Constitution is passed. Previously there was no express provision to this effect, which lack created the risk that legislation could be passed with a view to limiting rights and freedoms. It is also encouraging to note that the Constitutional Court has managed to set aside a number of provisions in pieces of legislation that are in direct conflict with the Constitution.36 The powers
conferred upon the Constitutional Court will furthermore ensure that checks and balances are applied on Parliament and the executive branch of government.
2.3 The appointment of judges under the Constitution of Zimbabwe
International law requires that States appoint judges through a strict selection process and in a transparent manner.37 Although international law does not provide
a specific method with regards to the appointment of judges, it is crucial that judges should be appointed and promoted on the basis of their legal skills, professional qualifications and integrity.38 Clear selection criteria based on merit should be
36 For example in October 2013, the Constitutional Court declared that s 31(a) of the Criminal Law
(Codification and Reform) Act Chapter 9:23 which prohibited the publication of falsehoods, was in contravention of the fundamental right to freedom of expression enshrined in the Constitution of Zimbabwe. For more see Voice of America 2013 http://www.voazimbabwe.com/ content/constitutional-court-freedom-of-expression-criminal-codefication-act/1780175.html. 37 See Principle 10 of United Nations Basic Principles on the Independence of the Judiciary (1985).
See also A 9 of the Universal Charter of the Judge (1999); Principle A, para 4(i) and (k) of the
Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa (2003). 38 The Human Rights Committee has over the years repeatedly referred to the criteria under which
judges are appointed and has established that judges should be appointed for their professional skills. See the Concluding Observations of the Human Rights Committee on Bolivia UN Doc CCPR/C/79/Add.74 para 34. See also the Concluding Observations on of the Human Rights Committee on Lebanon UN Doc CCPR/C/79/Add.78 para 15; Concluding Observations of the Human Rights Committee on Azerbaijan UN Doc CCPR/CO/73/AZE para 14; Concluding Observations of the Human Rights Committee on Sudan UN Doc CCPR/C/79/Add.85 para 21;
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provided in a state's constitution. This is essential to protecting the independence of the judiciary. Although international law does not give a specific procedure with regards to the appointment of judges, a number of international instruments contain certain common requirements that should be taken into account with regards to such appointments. The Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, for example, recommend that an independent body be entrusted with the selection of judicial officers. It also allows other bodies, including other branches of government, to perform the function of appointing judges as long as they safeguard the independence and impartiality of the judiciary.39
2.3.1 Minimum qualifications
As in the Lancaster House Constitution,40 the Constitution of Zimbabwe contains a
number of requirements regarding the qualifications that a judge should have in order to be appointed to any of the courts established under the Constitution. The express codification of the minimum qualifications for appointment contributes to the independence of the judiciary as it limits the possibility of manipulation by those empowered to make judicial appointments.41 This is confirmed by the Latimer House
Principles, which identify the appointment of judges on merit as one of the key ways of preserving judicial independence.42 As a result a number of African countries have adopted the same measures in order to preserve the independence of the judiciary.43
Concluding Observations of the Human Rights Committee on Slovakia UN Doc CCPR/C/79/Add.79 para 18.
39 Principle A, para 4(h) of the Principles and Guidelines on the Right to a Fair Trial and Legal
Assistance in Africa (2003). See also Principles 13-17 of the Beijing Principles on the Independence of the Judiciary in the LAWASIA Region (1995).
40 See s 82 of the Lancaster House Constitution. 41 Madhuku 2002 J Afr L 241.
42 Principle IV(a) of the Latimer House Principles on the Three Branches of Government (2003). 43 S 143(1)(a) of the Constitution of Uganda states that a person may be appointed Chief Justice
only if he or she has served as a judge of the Supreme Court of Uganda or a court with similar jurisdiction, or he or she has practised law as an advocate for a minimum period of 20 years. S 143(1)(e) of the Constitution of Uganda provides that for one to qualify as a judge of the High Court in Uganda, one must have practised for a minimum of 10 years as an advocate. S 112(1) of the Constitution of the Republic of Malawi, 1994 requires that a candidate must have practised as a lawyer for at least ten years to qualify for judicial appointment. S 139(4) of the Constitution
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Thus, the Constitution establishes the minimum qualification requirements for judges of the Constitutional Court,44 the Supreme Court,45 the High Court, the Labour Court
and the Administrative Court.46 These requirements for the appointment of judges for the different courts are necessary to ensure that individuals who are appointed to the bench are best qualified for the job and are fit and proper to hold judicial office. This resonates with a number of international instruments47 and standards in foreign
jurisdictions48 that seek to ensure that fit and proper individuals are appointed as
members of the judiciary. Other imperatives stated in the Constitution, such as the gender and racial representativeness of members of the judiciary,49 may require the
establishment of strategic policies to ensure the effective implementation of such imperatives.
2.3.2 The appointment process of judges under the Constitution of Zimbabwe
The involvement of politicians in the appointment process is required for the purposes of legitimacy. The appointment process should, however, not be entirely in the hands of politicians as this may pose the risk of appointments being made on the basis of political allegiance. It is important that the judicial authority must be derived from the people and such appointments should therefore be done by an elected organ of state. As a result, in a number of jurisdictions the head of the executive (the President or Prime Minister) has a critical say in the appointment of judges. The
of of the Republic of Ghana, 1992 also requires a minimum of ten years' experience as a lawyer. In South Africa and Namibia, there are no prescribed minimum requirements. This may be attributed to the focus in both countries on promoting the advancement of formerly disadvantaged groups. However, s 174(1) of the Constitution of South Africa does require that individuals must be appropriately qualified.
44 S 177 of the Constitution of Zimbabwe. 45 S 178 of the Constitution of Zimbabwe. 46 S 179 of the Constitution of Zimbabwe.
47 See Principle 10 of the United Nations Basic Principles on the Independence of the Judiciary (1985), which state that a person selected for judicial office should be appropriately trained, and have integrity and demonstrable ability.
48 See s 174(1) of the Constitution of South Africa, which states that "Any appropriately qualified woman or man who is a fit and proper person may be appointed as a judicial officer. Any person to be appointed to the Constitutional Court must also be a South African citizen". See also s 143 of the Constitution of Uganda.
49 S 184 of the Constitution of Zimbabwe which states that "appointments to the judiciary must reflect broadly the diversity and gender composition of Zimbabwe".
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degree of involvement and the extent to which the decision of the head of state is subject to confirmation by the legislature or another body may vary from country to country.50
The Lancaster House Constitution contained weak provisions with regards to the composition of the Judicial Services Commission (JSC). The JSC was thus mainly made up of presidential appointees.51 Naturally, the JSC was perceived to lack
independence. This perception in turn cast doubt on the independence and impartiality of the appointment of judges. This was further compounded by the fact that the President was entitled to proceed with the appointment of a member of the judiciary regardless of the advice received from the JSC.52 Thus, in an effort to
improve the appointment process of judges in the country, section 180 of the Constitution of Zimbabwe states that:
(1) The Chief justice, the Deputy Chief Justice, the Judge President of the High Court and all other judges are appointed by the President in accordance with this section. (2) Whenever it is necessary to appoint a judge, the Judicial Service Commission must- (a) advertise the position; (b) invite the President and the public to make nominations; (c) conduct public interviews of prospective candidates; (d) prepare a list of three qualified persons as nominees for the office; and submit the list to the President; whereupon, subject to subsection (3), the President must appoint one of the nominees to the office concerned. (3) If the President considers that none of the persons on the list submitted to him in terms of subsection (2) are [sic] suitable for appointment to the office, he or she must require the Judicial Service Commission to submit a further list of three qualified persons, whereupon the President must appoint one of the nominees to the office concerned. (4) The
50 Madhuku 2002 J Afr L 234.
51 The JSC under s 90 of the Lancaster House Constitution comprised of the Chief Justice or Acting Chief Justice or the most senior judge of the Supreme Court, the Chairman of the Public Service Commission, the Attorney-General, and not less than three other members appointed by the President, of whom one must be a person who is or has been a Supreme Court or High Court judge, a person who has been qualified as a legal practitioner in Zimbabwe for not less than five years, or a person who is possessed of such legal qualifications or experience as the President considers suitable and adequate for his appointment to the JSC; and the remaining Presidential appointees must be chosen for their ability and experience in administration, for their personal qualifications, or for their suitability otherwise for appointment. It is crucial to note that of the six possible members of the JSC under the Lancaster House Constitution, three members were directly appointed to the Commission by the President, two appointed by virtue of being the holders of offices to which they were appointed by the President after consultation with the JSC, and one was directly appointed by the President to an office by virtue of which he was a member of the Commission.
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President must cause notice of every appointment under this section to be published.
The question of whether or not this section truly contributes to the independence of the judiciary will be discussed in greater detail below. It is crucial, though, that the role of and composition of the JSC under the Constitution is briefly discussed first.
2.3.2.1 The Judicial Service Commission (JSC)
The extent to which the appointment of judges is free from political manipulation is largely reliant on the independence of the JSC.53 The Constitution of Zimbabwe
creates a JSC54 which plays a role in the appointment of judges.55 The composition of the JSC is as follows in accordance with section 189(1) of the Constitution:
(a) the Chief Justice; (b) the Deputy Chief Justice; (c) the Judge President of the High Court; (d) one judge nominated by the judges of the Constitutional Court, the Supreme Court, the High Court, the Labour Court and the Administrative Court; (e) the Attorney-General; (f) the Chief Magistrate; (g) the chairperson of the Civil Service Commission; (h) three practising legal practitioners of at least seven years' experience designated by the association, constituted under an Act of Parliament, which represents legal practitioners in Zimbabwe; (i) one professor or senior lecturer of law designated by an association representing the majority of the teachers of law at Zimbabwean universities or, in the absence of such association, appointed by the President; (j) one person who for at least seven years has practiced in Zimbabwe as a public accountant or auditor, and who is designated by an association, constituted under an Act of Parliament, which represents such persons; and (k) one person with at least seven years' experience in human resources management, appointed by the President.56
53 Madhuku 2002 J Afr L 238.
54 S 190 of the Constitution of Zimbabwe deals with the functions of the JSC which are: "(1) The Judicial Service Commission may tender advice to the Government on any matter relating to the judiciary or the administration of justice, and the Government must pay due regard to any such advice. (2) The Judicial Service Commission must promote and facilitate the independence and accountability of the judiciary and the efficient and transparent administration of justice in Zimbabwe, and has all the powers needed for this purpose. (3) The Judicial Service Commission with the approval of the Minister responsible for justice may make regulations for any purpose set out in this section. (4) An Act of Parliament may confer on the Judicial Service Commission functions in connection with the employment, discipline and conditions of service of persons employed in the Constitutional Court, the Supreme Court, the High Court, the Labour Court, the Administrative Court and other courts".
55 S 189 of the Constitution of Zimbabwe. 56 S 189 of the Constitution of Zimbabwe.
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Under the Constitution the JSC is made up of thirteen members, which is a significant improvement on the one established under the Lancaster House Constitution. It is clear from the composition of the JSC that the President's influence over the appointment of members of the JSC has been reduced compared to situation under the Lancaster House Constitution. Although some members sit on the Commission by virtue of being appointed to office by the President, considerarable efforts have been made to ensure that there is independent representation in the Commission. Such independent representation will therefore ensure that appointments to the judiciary are made impartially and without any political considerations. Perhaps to further strengthen the independent representation in the JSC, the inclusion of members of the civil society and members of the different political parties in Parliament would also have enhanced the independence of the Commission and helped to ensure it functions effectively without any external political influences.57
Section 191 of the Constitution mandates the JSC to conduct its business in a just and transparent manner. This provision seeks to ensure that the JSC maintains fairness and transparency in its work so as to avoid any political manipulation. Given the efforts made to secure the independence of the JSC, the body will thus act as a watchdog to conduct checks and balances over the President and ensure that judicial appointments are made on merit without any undue political influence. The Constitution has thus made a significant contribution to realising the importance of an independent Commission in judicial appointments. The maintenance of an independent JSC will bode well in seeking to address past problems about the lack of impartiality in the appointment process.
57 The South African example in this case could have been followed, as provided in s 178(1)(h) of the Constitution of South Africa, which states that "There is a Judicial Service Commission consisting of six persons designated by the National Assembly from among its members, at least three of whom must be members of the opposition parties represented in the Assembly". See also s 153 of the Constitution of Ghana, which provides for a Commission of 18 members, which includes amongst others four non-lawyers appointed by the President, a Chief and the editor of the Ghana Law Reports. The influence of the President is severely curtailed as the majority of the members of the Commission gain membership independent of his or her influence.
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2.3.2.2 Analysis of section 180 of the Constitution of Zimbabwe
In accordance with section 180 of the Constitution, the President is mandated to appoint judges, but is bound by the advice of the JSC.58 In order to ensure
impartiality and fairness in the appointment process, the Constitution lays down a number of guidelines that need to be followed before an individual may be appointed as a judge. The requirements that are laid down in the Constitution are as follows:
2.3.2.2.1 Advertisement of judicial vacancies59
In seeking to improve judicial appointments, the Constitution stipulates that the JSC must advertise any vacancy within the judiciary, invite applications for the post, and also invite the President and the public to make nominations.60 The advertisement of
vacancies is a commendable inclusion in the appointment process and seeks to ensure that suitably qualified individuals are appointed to the bench.61 It is also a
welcome change from the past, as previously there was never any public advertisement of judicial vacancies.62 Over the years judicial appointments have
been made without any such advertisements, resulting in questions being asked about the credibility of the appointment process.63 Advertisements will therefore aid in the appointment of well qualified and fit individuals to the judiciary and increase openness, transparency and the scrutiny of potential choices. It is submitted that such advertisements will therefore increase the professionalism of the judiciary.
58 S 180(1) of the Constitution of Zimbabwe.
59 It should be noted that the Lancaster House Constitution did not contain any provision requiring the advertisement of judicial vacancies.
60 S 180(2 (a) of the Constitution of Zimbabwe.
61 Such advertisement is in line with international law. See Principle II.I of Annex of the Latimer
House Principles on the Three Branches of Government (2003), which requires judicial vacancies to be advertised. See also Principle 12.3 of the Measures for the Effective Implementation of the Bangalore Principles of Judicial Conduct (2010).
62 Simbisai Zimbabwe Independent. 63 Simbisai Zimbabwe Independent.
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2.3.2.2.2 President and public nominations
The Constitution gives the president and members of the public the opportunity to nominate potential candidates to be appointed as judges.64 Such nominations are
made after the advertisement of judicial vacancies. It is submitted that the public's involvement in the nomination process marks an improvement from the Lancaster House Constitution, as it did not provide for the involvement of the public in the appointment process. The public's involvement in the judicial appointment process is crucial for the legitimacy and professionalisation of the appointment process. However, despite such positive changes being introduced, the Constitution contains a more alarming provision that allows the President to make nominations for any judicial vacancy in the country.65 Since the Constitution gives the President the final
authority in the appointment of judges, it is alarming that the President should also be given the powers to nominate any individual for judicial appointment.
It is submitted that this provision grants the president enormous powers in the appointment process. The President as a result might simply refuse to make an appointment if any of his or her nominations to the bench are not presented to him for appointment by the JSC. This provision is dangerous for the independence of the judiciary and is subject to abuse by the President in the case where his preferred choices are not forwarded for appointment. It also defeats the whole purpose of calling for members of the public to make nominations, as their views might not make any significant contribution in the appointment process. It is therefore difficult to dispel the suspicion that this provision was included to give the President indirect supreme powers over the JSC.
64 S 180(2)(b) of the Constitution of Zimbabwe. 65 S 180(2)(b) of the Constitution of Zimbabwe.
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2.3.2.2.3 Public interviews
The Constitution also provides that the JSC must conduct public interviews66 of
prospective candidates, from whom a list of three qualified and recommended persons must be prepared and submitted to the President67, from which list appointments have to be made.68 However, the President is not obliged to appoint
any of the three nominees on the initial list submitted by the JSC and in such cases the President must require the JSC to submit a further list of three qualified persons, whereupon the President must appoint one of the nominees.69 However, this
provision does not state the process through which the second list is to be obtained (in comparison to the first list) or provide that such individuals are also subject to public interviews. This therefore raises great suspicion that the appointment process might be subjected to manipulation. This is so because the people on the second list could therefore be handpicked, which could result in the appointment of pliant judges to the bench. This provision also alarmingly gives the President considerable power in the appointment of judges and there is great danger that the selection of judges might be further politicised. There is a need to review this provision to ensure that impartiality in the appointment process is observed.
Despite these concerns about the appointment process, the efforts made to ensure that there is transparency in the appointment process must be commended. They mark a departure from the past, and the cumbersome appointment process procedures seek to ensure that there are a series of quality control mechanisms which will review the proposed appointees' suitability, qualifications and skill to ensure the delivery of progressive jurisprudence.70 In order to further strengthen the impartiality of the appointment process, it is recommended that the JSC adopts clear standards for assessing the suitability and competence of candidates. Such standards must be published so that the public is aware of the standards used to
66 S 180(2)(c) of the Constitution of Zimbabwe. 67 S 180(2)(d) of the Constitution of Zimbabwe. 68 S 180(2)(d) of the Constitution of Zimbabwe. 69 S 180(3) of the Constitution of Zimbabwe. 70 Simbisai Zimbabwe Independent.
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assess judges. Public awareness will no doubt lead to confidence in the justice system as members of the public would be aware that fit, proper and well qualified individuals are appointed as judges.
2.3.3 Appointments of acting judicial officials under the Constitution
The practice of appointing acting judges has over the years raised international controversy. This is so because such appointments have been deemed to be contrary to sound legal policy and the independence of the judiciary as a result of their insecure tenure.71 Security of tenure is key to the independence of the judiciary, and if judges are appointed for a fixed term only there is a danger that they will be seen as attempting to please the individuals that have appointed them in order to obtain reappointment for another term. Another bone of contention about such appointments lies in the fact that the duration of the appointment is a matter within the gift of the executive.72 In order to secure the independence of acting judges, the Mount Scopus Revised International Standards of Judicial Independence73 stipulate that the appointment of temporary judges should be
avoided as far as possible, except where there exists a long historical democratic tradition,74 and stipulates that acting judges should be appointed only with proper
safeguards secured by law.75
The controversy associated with the appointment of acting judges were well articulated in the case of Ex Parte Chairperson of the Constitutional Assembly: in re Certification of the Constitution of the Republic of South Africa 1996 (First Certification Judgment),76 where objections were raised with regards to the
71 General Council of the Bar 2008 The Advocate 12. 72 General Council of the Bar 2008 The Advocate 12.
73 Mount Scopus Approved Revised International Standards of Judicial Independence (2008). 74 Principle 4.7 of the Mount Scopus Approved Revised International Standards of Judicial
Independence (2008).
75 Principle 4.8 of the Mount Scopus Approved Revised International Standards of Judicial
Independence (2008).
76 Ex Parte Chairperson of the Constitutional Assembly: in re Certification of the Constitution of the
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appointment of acting judges in the country.77 The objections to the provision were
to the effect that the Minister of Justice effectively had a sole discretion to make the appointments of all acting judges save for the appointment of acting judges to the Constitutional Court. Such discretion, therefore, was said to compromise the principle of the separation of powers. In its ruling the Constitutional Court acknowledged the merit of the objections but stated that there were sufficient safeguards to ensure that section 175(2) did not become the vehicle for an abuse of power. The Constitutional Court stated that the majority of the temporary positions needed to be filled urgently and unexpectedly" and it would therefore not be practicable to convene the large body of the JSC.78 The Court also noted that the Minister was precluded by section 165 of the Constitution from interfering in any way with the discharge by the acting judge of his or her duties.79 In line with
international law, the appointment of acting judges should be performed only with proper safeguards secured by law, so as not to compromise the independence of the judiciary.80
The Constitution of Zimbabwe provides for acting judicial appointments in section 181(1). It states that:
if the office of the Chief Justice is vacant or if the office-holder is unable to perform the functions of the office, the Deputy Chief Justice acts in his or her place, but if both offices are vacant or both office-holders are unable to perform their functions, the next most senior judge of the Constitutional Court acts as Chief Justice. (2) (a) If the office of President of the High Court; (b) Judge President of the Labour Court; or (c) Judge President of the Administrative Court; is vacant or if the
77 S 175 of the Constitution of South Africa states that "(1) the President may appoint a woman or man to be an acting judge of the Constitutional Court if there is a vacancy or if a judge is absent. The appointment must be on the recommendation of the Cabinet member responsible for the administration of justice acting with the concurrence of the Chief Justice. (2) The Cabinet member responsible for the administration of justice must appoint acting judges to other courts after consulting the senior judge of the court on which the acting judge will serve".
78 Ex Parte Chairperson of the Constitutional Assembly: in re Certification of the Constitution of the
Republic of South Africa 1996 (First Certification Judgment) 1996 4 SA 744 (CC) para 129. 79 Ex Parte Chairperson of the Constitutional Assembly: in re Certification of the Constitution of the
Republic of South Africa 1996 (First Certification Judgment) 1996 4 SA 744 (CC) para 130. 80 See Principle II.1 of the Annex to the Latimer House Guidelines on the Three Branches of
Government (2003), which states that "judicial appointments should normally be permanent; whilst in some jurisdictions, contract appointments may be inevitable, such appointments should be subject to appropriate security of tenure".
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holder is unable to perform the functions of that office, the next most senior judge of the court concerned acts as Judge President. (3) If the services of an additional judge of the High Court, the Labour Court or the Administrative Court are required for a limited period the President, acting on the advice of the Judicial Service Commission, may appoint a former judge to act in that office for not more than twelve months, which period may be renewed for one further period of twelve months. (4) Persons appointed to act under subsection (3) may continue to sit as judges after their appointments have expired, for the purpose of dealing with any proceedings commenced before them while they were so acting.
The above section clearly provides the procedure to be followed when acting judicial appointments are made. With regards to the appointment of acting judges in the High Court, the Labour Court and the Administrative Court, the President is bound by the advice of the JSC in order to ensure that there are no unilateral appointments. This section also marks an improvement on the Lancaster House Constitution, where the President was not bound by the advice of the JSC in the appointment of acting judges.81
With regards to the appointment of acting judges in the Constitutional Court82 and
the Supreme Court83, the Constitution provides that such appointments should be
performed by the Chief Justice. The Constitution is silent, however, on whether or
81 S 85 of the Lancaster House Constitution stated that "(1) if the offices of the Chief Justice and Deputy Chief Justice are vacant or the Chief Justice and the Deputy Chief Justice are for any reason unable to perform the functions of their offices, the President may after consulting the Judicial Service Commission, appoint some person holding the office of judge of the Supreme Court or Judge President of the High Court to act as Chief Justice. (2) If the office of a judge of the Supreme Court or the High Court other than the Chief Justice is vacant or such judge is appointed to act in some other judicial capacity or is for any reason unable to perform the functions of his office, or if the services of an additional judge of the High Court are required for a limited period, the President may, as the case requires and after consultation with the Judicial Services Commission, appoint some person qualified for appointment as a judge of the Supreme Court or the High Court to act in that office. (3) A person appointed to act under subsection (2)- (a) shall, subject to the provisions of section 87, continue to act for that period of his appointment or, if no such period is specified, until his appointment is revoked by the President, after consultation with the Judicial Services Commission; and (b) may, notwithstanding that the period of his appointment has expired or that his appointment has been revoked, sit as a judge for the purpose of giving judgment or otherwise in relation to any proceedings commenced before or heard by him while he was so acting".
82 S 166(2) of the Constitution of Zimbabwe states that "If the services of an acting judge are required on the Constitutional Court for a limited period, the Chief Justice may appoint a judge or a former judge to act as a judge of the Constitutional Court for that period".
83 S 168(2) of the Constitution of Zimbabwe states that "If the services of an acting judge are required on the Supreme Court for a limited period, the Chief Justice may appoint a judge of the High Court, or a former judge to act as a judge of the Supreme Court for that period".
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not the Chief Justice has to consult the JSC in appointing acting judges of the Constitutional Court and the Supreme Court. It should be noted that as head of the judiciary it is appropriate that the Chief Justice should make such appointments. However, the unilateral appointment of acting judges of the Constitutional Court and Supreme Court by the Chief Justice is of great concern and raises serious questions about the impartiality of such appointments. The Constitution in this instance therefore also provides for a weak constitutional protection of the appointment of acting judges. As a result of the existence of this loophole there is a possibility that the Chief Justice might be tempted to make appointments recommended by the executive.
In order to ensure that acting judges of the Constitutional Court and the Supreme Court are appointed impartially without any hint of political interference it would be ideal if the JSC were able to deal with the appointments of acting judges.84 It would
have also been plausible for the JSC to make all acting judicial appointments. This is the system adopted in Uganda, where the JSC appoints acting judges.85 This would
ensure that impartiality is observed in the appointment of acting judges. The inclusion of the above measures in the Constitution would have gone a long way towards securing the independence of the judiciary.
2.4 The removal of judges from office
It should be noted that the conditions for the removal of judges are important in securing the independence of the judiciary. Madhuku notes that if a judge can be easily removed from office, it matters very little that the appointment process is rigorous and free from political manipulation.86 International standards have been
put into place to preserve the independence of the judiciary, which standards place
84 See the example of Uganda in s 148 of the Constitution of Uganda states that "subject to the provisions of this Constitution, the Judicial Service Commission may appoint persons to hold or act in any judicial office other than the offices specified in article 147 (3) of this Constitution and confirm appointments in and exercise disciplinary control over persons holding or acting in such offices and remove such persons from office".
85 S 148 of the Constitution of Uganda.
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emphasis on preventing the improper removal of judges from office.87 It is crucial
that a judge in the case of his or her inability to perform judicial duties or in a case of serious misconduct must be removed from office by an independent and impartial tribunal.
The Lancaster House Constitution provided for the removal of a judge only for an inability to discharge the functions of his or her office and for misbehaviour.88
However, the Constitution of Zimbabwe, unlike the Lancaster House Constitution, provides broad and clear reasons that may result in a judge's removal from office. These include the inability to perform judicial functions, gross incompetence, and gross misconduct.89 The Constitution also stipulates the procedure that must be
followed if the question of the removal of a judge is raised. Section 187 of the Constitution states that:
(2) If the President considers that the question of removing the Chief Justice from office ought to be investigated, the President must appoint a tribunal to inquire into the matter; (3) If the Judicial Service Commission advises the President that the question of removing any judge, including the Chief Justice, from office ought to be investigated, the President must appoint a tribunal to inquire into the matter. (4) A tribunal appointed under this section must consist of at least three members appointed by the President, of whom- (a) at least one must be a person who (i) has served as a judge of the Supreme Court or High Court in Zimbabwe; or (ii) holds or has held office as a judge of a court with unlimited jurisdiction in civil or criminal matters in a country whose common law is Roman-Dutch or English, and English is an officially recognised language …
The Constitution retains the removal conditions of the Chief Justice stipulated under the Lancaster House Constitution.90 Like the Lancaster House Constitution, section
187(2) of the Constitution empowers the President to initiate removal proceedings against the Chief Justice. If the President contemplates such an act, the President is
87 See Principle IV of the Latimer House Principles on the Three Branches of Government (2003). 88 S 87(1) of the Lancaster House Constitution. It should also be noted that misbehaviour was not
defined under the Lancaster House Constitution but could be taken to mean misbehaviour in matters concerning the office of judge and would include a conviction for an offence that would render the person unfit to carry out judicial functions.
89 S 187(1) of the Constitution of Zimbabwe.
90 See s 87(2) of the Lancaster House Constitution, which stated that "If the President considers that the question of the removal from office of the Chief Justice ought to be investigated, the President shall appoint a tribunal to inquire into the matter".
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mandated to appoint a tribunal91 to enquire into the removal from office of the Chief
Justice. Further, section 187(3) of the Constitution gives the JSC the power to advise the President on the question of the removal of any judges, including the Chief Justice. If such a question is raised by the JSC, the President is mandated to appoint a tribunal to look into the matter.
Although the Constitution does render some authority to the JSC with regards to the removal process of judges in the country, it makes the President powerful with regards to the removal process of judges. The President has the power to appoint a tribunal if a question arises with regards to the removal of the Chief Justice and also if the JSC advises the President that the question of removing a judge, including the Chief Justice, ought to be investigated. The involvement of the President in the removal process of judges is unacceptable, as it is possible that a judge may be removed from office purely on political grounds. The fact that the President has the powers to unilaterally appoint members of the tribunal raises suspicion about the independence of such a tribunal. Since the President is bound by the tribunal's findings,92 it is possible that a tribunal might be appointed with a specific motive to remove a judge who might be viewed as "independent" by the executive. This is likely to have a direct impact on the independence of the judiciary and violates the doctrine of the separation of powers.
It is therefore crucial that in order to secure the independence of the judiciary, the JSC should have a central role in the removal of judges. The JSC must be given the sole power to initiate the process of the removal of a judge and also to establish a tribunal if a question arises with regards to the removal of judge. Such a process would ensure that the tribunal appointed is independent and hence that the tribunal will be impartial in its findings. The Constitution could have been well informed by a
91 See s 187(4) of the Constitution of Zimbabwe for the composition of the tribunal.
92 S 187 of the Constitution states that "(7) A Tribunal appointed under subsection (2) or (3) must inquire into the question of removing the judge concerned from office and, having done so, must report its findings to the President and recommend whether or not the judge should be removed from office. (8) The President must act in accordance with the tribunal's recommendations in terms of subsection (7)".
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number of jurisdictions around Africa, where the JSC is given the sole power to initiate the investigation if a question arises as whether or not a judge ought to be removed from office, and also to recommend action to the President.
Article 84 of the Constitution of Namibia restricts the grounds for the removal of a judge to mental incapacity and gross misconduct.93 Only the JSC is empowered to
initiate the investigation with regards to the removal of a judge and to recommend such removal to the President. The President as a result can act only on the recommendations of the JSC, and even win the case of the office of the Chief Justice the President cannot initiate removal proceedings.94 In South Africa two stages have been established for the removal of a judge. The Judicial Service Commission must make a finding that a judge suffers from incapacity, is grossly incompetent, or is guilty of gross misconduct.95 The National Assembly can also call for a judge to be
removed by a resolution that is adopted by a supporting vote of at least two thirds of its members.96 The powers of the President in the removal process are therefore limited in that the President must remove a judge upon the adoption of a resolution calling for the judge to be removed.97 Therefore, in order to secure the independence of the judiciary the Constitution of Zimbabwe should have limited the powers of the President in the matter of the removal of judges.
2.5 The tenure of judges
The security of tenure of judges is also key to securing the independence of the judiciary. Although the Constitution provides that judges cannot be removed from office unnecessarily, it does provide for a compulsory retirement age so that judges
93 S 84(2) of the Constitution of the Republic of Namibia, 1990 states that "judges may only be removed from office on the ground of mental incapacity or gross misconduct, and in accordance with provisions of Sub-Article (3) hereof".
94 S 84 of the Constitution of Namibia states that "(1) A judge may be removed from office before the expiry of his or her tenure only by the President acting on the recommendation of the Judicial Service Commission… (3) The Judicial Service Commission shall investigate whether or not a judge should be removed from office on such grounds, and if it decides that the judge should be removed, it shall inform the President of its recommendation".
95 S 177(1)(a) of the Constitution of South Africa. 96 S 177(1)(b) of the Constitution of South Africa. 97 S 17 (2) of the Constitution of South Africa.
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can be replaced. Madhuku notes that given the fact that judges wield enormous powers but are not politically accountable to the people, it would be inappropriate for a judge to occupy the judicial seat forever.98 Madhuku also notes that the compulsory retirement age of judges takes away from the executive the power to grant a favourable judge the privilege of remaining in office longer than others, as this would undermine the independence of the judiciary.99
Section 186(1) of the Constitution states that:
Judges of the Constitutional Court are appointed for a non-renewable term of not more than fifteen years, but- (a) they must retire earlier if they reach the age of seventy years; and (b) after the completion of their term, they may be appointed as judges of the Supreme Court or the High Court, at their option, if they are eligible for such appointment. (2) Judges of the Supreme Court and the High Court hold office from the date of their assumption of office until they reach the age of seventy years, when they must retire. (3) A person may be appointed as a judge of the Supreme Court or the High Court for a fixed term, but if the person is so appointed, other than in an acting capacity, he or she ceases to be a judge on reaching the age of seventy years even if the term of his or her appointment has not expired; (4) Even though a judge has resigned or reached the age of seventy years or, in the case of a judge of the Constitutional Court or a judge referred to in subsection (3), reached the end of his or her term of office, he or she may continue to sit as a judge for the purpose of dealing with any proceedings commenced before him or her while he or she was a judge. (5) A judge may resign from his or her office at any time by written notice to the President given through the Judicial Service Commission. (6) The office of a judge must not be abolished during his or her tenure of office.
The protection of the tenure of judges under the Constitution is remarkably different from that provided under the Lancaster House Constitution. The Lancaster House Constitution allowed the President to extend the retirement age of judges.100 The
President was given the power to either accept or reject a medical report as to the
98 Madhuku 2002 J Afr L 243. 99 Madhuku 2002 J Afr L 243.
100 S 86 of the Lancaster House Constitution stated that "(1) Subject to the provisions of section 87, a judge of the Supreme Court or the High Court shall retire when he attains the age of sixty-five years unless before he attains that age, he has elected to retire on attaining the age of seventy years: Provided that (a) an election under this subsection shall be subject to the submission to, and acceptance by, the President, after consultation with the Judicial Service Commission, of a medical report as to the mental and physical fitness of the judge so to continue in office; (b) the provisions of this subsection shall not apply to an acting judge or a judge who has been appointed for a fixed period of office".
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mental and physical fitness of a judge to continue in office. The provision allowing the President the powers to extend the retirement age of a judge provided an avenue through which the executive could seek to influence judicial behaviour.101 This might have resulted in only pliant judges having their terms of office extended, which would have undermined the independence of the judiciary.
The Constitution of Zimbabwe, unlike the Lancaster House Constitution, has taken away the powers of the President to grant a judge the privilege of remaining in office.102 In an effort to enhance the independence of the judiciary, the Constitution
now provides that judges of the Supreme Court and High Court hold office from the date of their assumption of office until they reach the age of seventy years, when they must retire.103 Judges of the Constitutional Court are appointed for a
non-renewable term of not more than 15 years and have a compulsory retirement age of 70.104 The Constitution therefore does not allow the executive the discretionary
power to extend the term of office of a judge. However, a judge of the Constitutional Court upon completion of a term may be appointed as a judge of the Supreme Court or the High Court if so qualified.105 One can imply that the idea behind the non-renewable term of not more than 15 years for Constitutional Court judges is to provide a regular rotation of judges in the Constitutional Court, so that constitutional interpretation can reflect the changing attitudes of society. An inference can also be drawn as to why judges of the Constitutional Court can still be appointed as judges of the Supreme Court and the High Court before they reach the age of 70. Due to their experience it would be a huge loss to the legal field if they were not to be appointed to the judiciary in this context. Hence, the Constitution envisages that if they so qualify they can still be retained as judges of the Supreme Court and the High Court. Section 186(6) of the Constitution also protects the tenure
101 Madhuku 2002 J Afr L 243.
102 See for example the Constitution of South Africa which also uses the same method. S 17 (1) of the Constitution of South Africa states that a judge of the Constitutional Court is appointed for a non-renewable term of 12 years and must retire at the age of 70 years, whichever occurs first, except where an Act of Parliament extends the term of office of the Constitutional Court judge. 103 S 186(2) of the Constitution of Zimbabwe.
104 S 186(1)(a) of the Constitution of Zimbabwe. 105 S 186(1)(b) of the Constitution of Zimbabwe.
